Appeal from the Circuit Court of DuPage county; the Hon.
RUSSELL W. KEENEY, Judge, presiding. Affirmed.
PRESIDING JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
This is an appeal by the defendant from a judgment awarding the plaintiff a writ of mandamus. The writ directed the defendant, as building commissioner of the village of Hinsdale, to issue a permit to build a residence on substantially the east one-half, longitudinally, of four contiguous lots originally platted in a lateral or west-east direction. The original plaintiff died after the entry of the judgment and her executors and trustees have been substituted as appellees.
The material factual matters in evidence are substantially as follows:
On May 8, 1922, the plaintiff acquired title to four contiguous vacant lots in the village of Hinsdale, lots 43, 44, 45, and 46 in a certain platted addition, lying on the east side of Bodin Street, a north-south street, and extending north to Chicago Avenue, a west-east street. They all extended 125 feet west to east, and each was 25 feet wide except lot 46, which was at the corner or intersection of Bodin Street and Chicago Avenue, and it was 24 feet wide. The village zoning ordinance was adopted February 5, 1923. On April 21, 1924, the plaintiff filed applications for two building permits, to construct one house on lots 43 and 44, the lots farthest to the south, and another house on lots 45 and 46, the lots farthest to the north, the houses to face west on Bodin Street. Plans and specifications for the two houses were submitted with the applications. Permits were issued, as so originally requested, the same day, though they were not available at this trial. A day or two later, the plaintiff owner's son, the contractor, was approached by Mr. Nicholson, the then village building commissioner, who inquired as to what he was going to do, and the contractor said he was going to build a couple of houses. Mr. Nicholson asked that he hold off until Nicholson could give it further consideration with the village authorities. The next day Mr. Nicholson, the building commissioner, or inspector, Mr. Danielson, the then village manager, and Mr. Bruckner, the then village president, came to talk with the plaintiff's son. The three suggested, in substance: "Why don't you change the houses and face them north and have a 35 foot setback. . . ." The contractor asked if that would be permissible, was informed that it was, and that they (the officials) "would fix the permit."
Subsequent to those discussions with the village officers, the plaintiff did build a house on the west 66 feet of the four lots, in accordance with the changed applications for permits, though it was faced west on Bodin Street, instead of north towards Chicago Avenue. Otherwise, this house was built in accordance with the original plans and specifications. The village manager and village president made examinations of that house from day to day as the work progressed. The then contemplated other house for the east 58 feet, approximately, of the lots was never built, but the reason therefor does not appear in the record and is presently immaterial.
The plaintiff later disposed of the west portion of the four lots, that part being described as the west 62 1/2 feet, but has retained ownership of the vacant east portion of the four lots and the present suit is concerned with that east portion. The addition in which these lots lie was originally platted by a plat recorded August 8, 1874.
The permit applications, which have been in the possession of the village since 1924, were produced at the trial and introduced in evidence as defendant's exhibits 3 and 4. Exhibit 3 was the application originally requesting a permit to build on lots 43 and 44. Exhibit 4 was the application originally involving lots 45 and 46. The original description appearing in exhibit 3 was stricken out, and below was written: "The east 58 1/4 feet of Lots 43, 44, 45 and 46." The original description appearing in exhibit 4 was stricken out and below was written: "The west 66 3/4 feet of Lots 43, 44, 45 and 46." The changes were not made by the applicant. The then building commissioner caused the applications to be stamped "approved" and affixed his initials, though apparently no actual new permits pursuant to the applications as so amended were issued. The former village president, William T. Bruckner, 86 years old, was called as a defendant's witness. He recalled practically nothing of the transaction, but did identify the initials "F.D.D." appearing on the corner of exhibits 3 and 4, as being those of Mr. Danielson, the then village manager. In Hinsdale, the village manager is or was at that time responsible for the issuance of building permits. There is nothing to indicate the board of trustees of the village disapproved of the changes in the applications or the manner of erection of the house on the westerly portion of the lots.
In December, 1945, the plaintiff again made application for a building permit to construct a house on the east 62 1/2 feet of the four lots. The building commissioner refused to issue a permit on the ground that the tract did not have sufficient area. This decision was appealed to the board of appeals, which likewise refused a permit. Other similar requests in certain later years met like refusals. All the administrative rulings were based solely upon the minimum area requirements of the ordinance for a single family dwelling.
On June 11, 1956, the plaintiff filed her present petition for mandamus, to compel the issuance of a building permit for a residence on substantially the east half of the four lots. After trial of the issues, a judgment order, in accordance with the petition, was entered December 28, 1956.
It is the defendant appellant's theory that: (a) the zoning ordinance, as amended in 1944, requires a minimum of one-sixth of an acre, or 7,260 square feet of area for each single family dwelling; (b) since plaintiff's remaining vacant east half of these four lots contains a total of only 6,187.5 square feet, or approximately 15 per cent less than one-sixth of an acre, the zoning ordinance prohibits the erection of a single family dwelling thereon; (c) those remaining portions, the east half, substantially, longitudinally, of the original four lots, originally layed out laterally, cannot be combined and lumped together for this purpose to come within the language and intent of an exception in the ordinance as to minimum area having to do with lots or parcels of land duly recorded prior to the original passage of the ordinance, February 5, 1923.
Section 1369 (3) of the zoning ordinance of the village of Hinsdale, as amended in 1944, provides as follows, so far as material: "INTENSITY OF USE OF LOT: No building with its accessory buildings shall occupy in excess of twenty-five per cent (25%) of the area of an interior lot, nor in excess of thirty-five per cent (35%) of the area of a corner lot. No dwelling or group of dwellings shall hereafter be erected or altered to accommodate or make provision for more than six (6) families on any acre of land, or make provision for more than a proportional number of families on any fractional part of an acre of land, and further that each parcel of land on which a dwelling may be erected or maintained shall have a frontage of not less than fifty (50) feet, except that a single family dwelling may be erected on any lot or parcel of land having an area of less than one-sixth of an acre or having less than fifty (50) feet street frontage, provided that such lot or parcel of land shall have been duly recorded in the office of the Recorder of Deeds of DuPage County or in the office of the Recorder of Deeds or of the Registrar of Titles of Cook County, Illinois, prior to the original passage of this section, February 5, 1923."
Three of the four one-half lots remaining are only 25 ft. x 62 1/2 ft., and one lot is only 24 ft. x 62 1/2 ft., and if the four one-half lots were considered as a single parcel, they are only 62 1/2 ft. x 99 ft., or 6,187.5 sq. ft. in area altogether. The zoning ordinance by its 7,260 sq. ft. minimum area requirement for a single family dwelling, precludes the use of the four one-half lots remaining in their present state for single family dwelling purposes, although the area is in the "A" Residential District and although that is the highest and best use thereof, in fact, the only permissible use therefor except for a library, school, or church, none of which appear practicable under the circumstances, and the nearest commercial use being some three blocks away, unless the situation come within the exception stated in the ordinance, or the village is estopped to raise the question.
There is nothing to indicate that the village or any surrounding nearby property would be injured by the granting of a permit for or the erection of a house on the east 62 1/2 feet of the four lots, as prayed, or that the lapse of time since 1924 has prejudiced the village or surrounding property owners. The closest property owner was the owner of the adjoining westerly portion of these same four lots, and he, in fact, testified as a witness for the defendant here, but he did not voice any objection.
The evidence shows that the changes in the property descriptions on the applications for the two building permits, as of April 21, 1924, were made by officers or agents of the village, so that, as originally intended, after those changes, one house was to be constructed on the westerly portion of the four lots, and the other house was to be constructed on the easterly portion thereof, and such was not only with the approval of the then village officials but actually at their instigation. What the plaintiff has done on the westerly portion, and intends to do on the easterly portion, as we understand it, has been and will be in ...